Do you agree that over the years the Supreme Court has become a forum for policy evolution? Justify your answer. (2023, 15 Marks)
A constitutional court is designed to resolve disputes and test laws. India’s Supreme Court has also become a place where public policy is proposed, argued, tested and revised. I agree, with one qualification: it is a forum in which policy evolves through dialogue with the elected branches, and it is seldom the policy’s final author.
How the forum was built
- PIL and relaxed standing (S. P. Gupta, 1981) brought policy failures to the Court as rights claims.
- Article 21 read with Part IV turned non-justiciable directives into enforceable entitlements.
- Continuing mandamus, Article 141 guidelines and Article 142 orders let the Court monitor and shape implementation over years.
Policy that evolved through the Court
| Field | Judicial move | Policy outcome |
|---|---|---|
| Environment | CNG for Delhi’s public transport (1998–2002); forest bench in Godavarman | Clean-fuel transition; an authority for air quality; the Central Empowered Committee |
| Climate | M. K. Ranjitsinh (March 2024): a right against the adverse effects of climate change | Climate change placed within Articles 14 and 21 |
| Food and education | PUCL orders (from 2001); Unni Krishnan (1993) | Mid-day meals → NFSA 2013; Article 21A → RTE Act 2009 |
| Workplace and privacy | Vishaka (1997); Puttaswamy (2017) | POSH Act 2013; data protection law followed in 2023 |
| Children | Sivakasi child labour case (M. C. Mehta v. State of Tamil Nadu, 1996) | Rehabilitation fund and welfare directions |
| Natural resources | 2G licences cancelled (2012) | Auction preferred; then qualified by the 2012 Presidential Reference |
| Electoral finance | Electoral bonds struck down (February 2024) | Donor data disclosed; political funding debate reopened |
| Electoral rolls | SIR challenge: interim directions, then the exercise upheld (May 2026) | The Court shaped procedure while leaving the design to the Commission |
The 2G sequence shows the dynamic best. A policy preference for auctions announced in 2012 was narrowed within months to “auction is not a constitutional mandate”, and the choice was returned to the executive.
Where the Court declines to make policy
- BALCO (2001): courts will not second-guess economic policy such as disinvestment unless it is illegal or mala fide.
- Farm laws (2021): the laws were stayed and a committee was appointed, but its report was never used; Parliament repealed the laws.
- Demonetisation (Vivek Narayan Sharma, 2023): upheld 4:1, with Justice B. V. Nagarathna dissenting on process.
- Supriyo Chakraborty (2023): same-sex marriage was left to Parliament.
- The November 2025 advisory opinion withdrew judicially fixed timelines for Governors.
Assessment
The deeper pattern is dialogic. The Court declares a principle and Parliament codifies it (POSH, RTE, NFSA, data protection), or the Court revises itself (2G). Its limits are real. Health and education orders have often ended in what Mark Tushnet calls weak remedies, as Shylashri Shankar and Pratap Bhanu Mehta suggest, and bold declarations blur accountability. The Court lacks the data, budget and electoral mandate for trade-offs.
Conclusion
The Supreme Court has undeniably become a forum for policy evolution. It has not become a policy-maker in its own right. It works best when it forces the question and the legislature supplies the answer, and least well when it chooses the policy itself.